Page 441 - Trump Executive Orders 2017-2021

10144 Federal Register / Vol. 83, No. 46 / Thursday, March 8, 2018 / Presidential Documents

to commit arson to apply a burning match to a haystack, even if no fire results. The overt act need
not be the last act essential to the consummation of the offense. For example, an accused could
commit an overt act, and then voluntarily decide not to go through with the intended offense. An
attempt would nevertheless have been committed, for the combination of a specific intent to
commit an offense, plus the commission of an overt act directly tending to accomplish it,
constitutes the offense of attempt. Failure to complete the offense, whatever the cause, is not a
defense.
(3) Factual impossibility. A person who purposely engages in conduct which would constitute
the offense if the attendant circumstances were as that person believed them to be is guilty of an
attempt. For example, if A, without justification or excuse and with intent to kill B, points a gun
at B and pulls the trigger, A is guilty of attempt to murder, even though, unknown to A, the gun is
defective and will not fire. Similarly, a person who reaches into the pocket of another with the
intent to steal that person's billfold is guilty of an attempt to commit larceny, even though the
pocket is empty.
(4) Voluntary abandonment. It is a defense to an attempt offense that the person voluntarily and
completely abandoned the intended crime, solely because of the person's own sense that it was
wrong, prior to the completion of the crime. The voluntary abandonment defense is not allowed if
the abandonment results, in whole or in part, from other reasons, for example, the person feared
detection or apprehension, decided to await a better opportunity for success, was unable to
complete the crime, or encountered unanticipated difficulties or unexpected resistance. A person
who is entitled to the defense of voluntary abandonment may nonetheless be guilty of a lesser
included, completed offense. For example, a person who voluntarily abandoned an attempted
armed robbery may nonetheless be guilty of assault with a dangerous weapon.
(5) Solicitation. Soliciting another to commit an offense does not constitute an attempt. See
paragraph 6 for a discussion of Article 82, Solicitation.
(6) Attempts not under Article 80. While most attempts should be charged under Article 80, the
following attempts are specifically addressed by some other article, and should be charged
accordingly:
(a) Article 85-Desertion
(b) Article 94-Mutiny or sedition
(c) Article 1 GO-Subordinate compelling surrender
(d) Article 103a-Espionage
(e) At1icle 103b-Aiding the enemy
(f) Article 119a-Death or injury of an unborn child
(g) Article 128-Assault
(7) Regulations. An attempt to commit conduct which would violate a lawful general order or
regulation under Article 92 (see paragraph 18) should be charged under Article 80. It is not
necessary in such cases to prove that the accused intended to violate the order or regulation, but it
must be proved that the accused intended to commit the prohibited conduct.
d. Mmdmum punishment. Any person subject to the UCMJ who is found guilty of an attempt under
Article 80 to commit any offense punishable by the UCMJ shall be subject to the same maximum
punishment authorized for the commission of the offense attempted, except that in no case shall
the death penalty be adjudged, and in no case, other than attempted murder, shall confinement
exceeding 20 years be adjudged. Except in the cases of attempts of rape and sexual assault under
Article 120(a) or (b), and rape and sexual assault of a child under Article 120b(a) or (b), mandatory
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minimum punishment provisions shall not apply.

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